NO. 03

- 00433

- CR

* * *

In The 3 rd District

Court of Appeals of Texas

* * *

Hector Hato Laboy

v.

The State of Texas

* * *

Appealed from the

Travis County

County Court at Law No. 4

Trial Court Cause No. D-1- DC

- 13

- 204642

___________________________________________________________________

APPELLANT’S BRIEF

___________________________________________________________________

John S. Butler

State Bar No. 03526150

700 Lavaca Street, Suite 1 400

Au stin, Texas 78701

Telephone (512) 472- 3887

Facsimile (512) 233- 1787

Email butler@lawyer.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED ACCEPTED

03-15-00433-CR

7215141

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/2/2015 4:46:22 PM

JEFFREY D. KYLE

CLERK- 2

- Identities of Parties and Counsel

Appellant: Hector Hato Laboy

Trial Couns el: Donna Keith

605 West Oltorf Street

Austin, Texas 78755

Appellee: The State of Texas

Appellant Counsel and

Trial Counsel: Rosemary Lehmberg

Travis County District Attorney

P O Box 1748

Austin, Texas 7876 7

- by

Kelly Gier

Assistant District Attorney

Trial Judge: Hon. Mike Denton

P O Box 1748

Austin, Texas 78767- 3

- Table of Contents

Identity of Parties and Counsel ...2

Table of Contents ...3

Index of Au thorities ...4

Statement Regarding Oral Argument ...4

Statement of the Case ...5

Issues Presented ...5

Statement of the Facts ...5

Summary of the Argument s ...7

Argument ...10

Prayer for Relief

... 11

Certifi cations ...1 3- 4

- Index of Authorities

Strickland v. Washington, 466 U.S. 668 (1984) ...8

Devine v. State, 786 S.W.2d 268 (Tex.Crim.App.1989) ...7

Cook v. State, 940 S.W.2d 344 (Tex.App.

— Amarillo 1997,) ...7, 8

In re A.C. 48 S.W.3d 899 (Tex.App.

— Fort Worth 2001) ...7

Davis v. State , 413 S.W.3d.813 (Tex.App.

— Austin 2013) ...8

Frangias v. State, 392 S.W.3d 642 (Tex.Crim.App.2013) ...8, 9

Davis v. State , 413 S.W.3d.813 (Tex.App.

— Austin 2013 ) ...9

United States Constitution Amendments 5 and 14 ...9

Texas Constitution art. I §10 ...9

T EX

. P EN

. C ODE A

NN

. §22.07 (a)(2) ...9

BLACK’S LAW DICTIONARY (6th ed.1990) ...7, 10

Statement Regarding Oral Argument

Due to the fact

- intensive nature of the arguments presented herein,

Appellant requests that the Court hear oral argument.- 5

- Statement of the Case

A ppellant was placed on five years probation for the offense of Assault

Family Violence, a third

- degree felony. On June 12, 2015, a hearing was held on

the State’s Motion to Revoke Probation. After hearing evidence and argument the

trial court revoked Appe llant’s probation and sentenced him to three years

imprisonment.

Issues Presented

1. The trial court erred in finding that Appellant violated the term of his

probation by committing the offense of Terroristic Threat.

2. Trial court counsel was ineffective in failing to object to testimony that was

hearsay and violated Appellant’s right to confrontation under Federal and

State constitutional law.

Statement of Facts

On August 12, 2013, Appellant Hector Laboy was placed on five years’ probation

for felony ass ault family violence. On March 13, 2015, the State filed a Motion to

Revoke Community Supervision, alleging that he submitted positive urine- 6

-

specimens for controlled substances, he failed to submit a urine or breath specimen

at his probation officer’s req uest, failed to pay various court costs and fines, failed to

have no contact with victim, committed the offense of Terroristic Threat on or about

February 13, 2015, and committed the offense of Criminal Mischief on or about

February 14, 2015. (Clerk’s Reco rd [CR] p.50). A hearing on this Motion was held

on June 12, 2015. At the start of the hearing, The State waived the ―no contact‖

allegation and the allegation of Terroristic Threat of February 13, 2015, while

adding an allegation of Terroristic Threat on February 14, 2015

. Appellant did not

object to the amendments . (Court Reporter’s Record [CRR] v.2 p.5.).

Appellant pled true to the allegation s about controlled substances. (CRR. V.2

p.7).

Travis Lucas of the Smithville Police Department testified that he was

responding to call of Criminal Mischief when he encountered Appellant, driving

silver Honda sedan. As the call described the suspect leaving the scene in a s ilver

Honda, the officer detained Appellant, searched his vehicle, and released him.

Office r Lucas then proceeded to th e scene, where he spoke to Ja k uri McLaurin, who

―informed [him] of the crimin al mischief act.‖ (CRR v. p.13) and that ―Jacuri stated

that he actually observed [Appellant] slash the tires.‖ (CRR v.2 p.15). The office- 7

-

also testifi ed that he listened to a phone call (on speakerphone) received by Cassie

Durfee, and that he recognized Appellant on the phone by his voice and his

description of his recent encounter with Officer Lucas. A ccording to Lucas,

[Appellant] ―s tated that he was going to kill Jakuri.‖ (CRR v.2 p.14).

Summary of the Argument s

There is insufficient evidence to support the conclusion that

Appellant committed the offense of Terroristic Threat

The offense of Terroristic Threat requires that the victim be placed ―in fear on

imminent serious bodily injury.‖ T EX

. P EN

. C ODE A NN

. §22.07(a)(2). Imminent

means ―[n]ear at hand; mediate rather than immediate; close rather than touching;

impending; on the point of happening; threatening; menacing; perilous.‖

BLACK’S LAW DICTIONARY 750 (6th ed.1990); see also Devine v. State, 786

S.W.2d 268, 270 (Tex.Crim.App.1989) ; Cook v. State, 940 S.W.2d 344, 347- 8

-

(Tex.Ap p.

—

Amarillo 1997, pet. ref’d)

. In re A.C. 48 S.W.3d 899, 904

(Tex.App.

— Fort Worth 2001).

The injury in this case was not ―on the point of happe ning.‖ There was only :

―He stated that he was going to kill Jakuri.‖ (CRR v.2 p.14). In Cook v. State , the

A marillo Court of Appeals found sufficient evidence of Terroristic Threat where

the defendant left three message ―in rapid succession‖ , explicitly stating ―this is a

g

--- damn threat‖ and that ―he was looking for [his victim] and that he would injure

him whe n he found him.‖ Cook v. State , 940 S.W.2d 344, 348 (Tex.App.

– Amarillo

1997). In this case, Appellant ―stated that he was going to kill Jakuri‖ once

,

without elaborating

, in a telephone call

. (CRR v.2 p.14). Appellant had last been

seen ―leaving the scene. ‖ (CRR v.2 p.10)

.

Trial court counsel was ineffective in failing to object to testimony

that was hearsay and violated Appellant’s right to confrontation

under F ederal and State constitutional law.

An ineffective assistance of counsel claim is subject to the Strickland

standard, requiring a defendant to prove by a preponderance of the

evidence that (1) counsel’s representation fell below an objective

standard of reasonableness under prevailing professional norms and

(2) the deficient performance p rejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

.- 9

-

An accused is not entitled to entirely errorless representation, and we

look to the totality of the representation in gauging the adequ acy of

counsel’s performance. Frangias v. State, 392 S.W.3d 642, 653

(Tex.Crim.App.2013) . But even a single instance of counsel’s error

can rise to the level of deficient performance, ―if the er ror was

egregious and had a seriously deleterious impact on the balance of the

representation.‖ Id.

Davis v. State , 413 S.W.3d.813, 828 (Tex.App.

— Austin 2013, pet. ref’d.).

In this case, the error was counsel’s failure to object to the testimony o f

Travis Lucas: ―I originally started talking to Jacuri [McLaurin] and he ... informed

me of the criminal mischief act, and he was showing me the tires.‖ (CRR v.2 p.13).

This was unad

u lterated hearsay. Tex. R. Evid 801(d); 802. It also violated

Appellant’s right to confront his accusers under the United States Constitution

Amendments 5 and 14 and the Texas Constitution art. I §10. Insofar as this was the

only evidence presented on the issue of whether Appellant committed the offense of

Criminal Mischief, th ere could be no reason to allow this testimony to go

unchallenged. If trial counsel had objected, it would have been excluded, and there

would have been no evidence to support this particular allegation. Failure to object

in this instance clearly ― had a seriously deleterious impact.‖ Frangias at 653.- 10

- Argument

The State alleged in this case that Appellant violated the terms of his

probation by (a) submitting positive urine specimens for controlled substances, (b)

failing to submit a urine specimen when directed by his probation officer, (c) failure

to pay money, (d) committing the offenses of Terroristic Threat and Criminal

Mischief.

The written judgment notwithstanding, the trial court judge explicitly stated

in open court that he was not revoking A ppellant’s probation because of money or

urine samples. See CRR v.2 p.33: ―I’m not concerned about fees .‖ and CRR v.2

p.36: ―[T]he missed UA’s the positive UA’s ... I’m not going forward on that.‖

The judge made it clear that his only bases for revocation were the two new

offenses: ―But I will go forward on what is correct, if I'm on probation for an assault

and then I make threats, these kinds of threats as well as destroy property, sir, I do

find that allegation

-- those allegations true, so I am going t o revoke your

probation.‖ (CRR v.2 p.36).

Though a threat was made, it did not rise to the level of ―terroristic‖ because

it was not imminent, not ―[n]ear at hand; mediate rather than immediate; close

rather than touching; impending; on the point of happe ning; threatening;- 11

-

menacing; perilous.‖ BLACK’S LAW DICTIONARY 750 (6th ed.1990). Thus,

no offense.

But for trial counsel’s failure to object to testimony

– about Criminal

Mischief

- that was clearly inadmissible on both hearsay and confrontation

grounds , there would be no evidence at all to support the judge’s decision to

revoke Appellant’s probation.

Prayer

WHEREFORE, Appellant prays this Court grant the request, and reverse the

judgment and sentence of the trial court, and remand the case to the tria l court for a

new hearing. Appellant further requests any and all such other relief to which he

may be entitled.- 12

- Respectfully submitted,

John S. Butler

ATTORNEY FOR APPELLANT

700 Lavaca Street, Suite 1 400

Austin, Texas 78701

Telephone (512) 472

- 3887

Facsimile (512) 233

- 1787

STATE BAR #03526150- 13

- CERTIFICATE OF SERVICE

As Attorney of Record for Appellant, I d o hereby certify that a true and correct

copy of t his Appellant’s Brief was this date provide d to the District Attorney of

Travis County

, P O Box 1748, Austin, Texas 78767 , via U.S. Mail.

Date: October 2 , 2015

JOHN S. BUTLER

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

As Attorney of Record for Appellant, I do hereby certify that this document

contains 1,6 79 words, as determined by Microsoft Word 2010, the computer

program used to prepare the document.

Date : October 2 , 2015

JOHN S. BUTLER

Attorney for Appellant